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[2019] ZAECBHC 8
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Manqina v Road Accident Fund (446/2014) [2019] ZAECBHC 8 (9 May 2019)

IN THE HIGH COURT OF
SOUTH AFRICA
EASTERN
CAPE LOCAL DIVISION (BHISHO)
Case No: 446/2014
In
the matter between:
MAVIS
NONTEMBISO
MANQINA
Plaintiff
and
ROAD
ACCIDENT FUND
Defendant
JUDGMENT
NQUMSE
AJ:
[1]
The application concerns an interim payment in terms of the
provisions of Rule 34A
of the Uniform Rules of court pending the
final determination of the main action which has been instituted by
the Applicant (plaintiff
in the main action) against the Respondent
(defendant in the main action).
[2]
The prayers that are sought in the Notice of Motion are the
following:
2.1
Directing the respondent to pay the account of Nine Hundred and Fifty
Thousand Rand (R950
000 00) to the bank account of the Applicant’s
Attorneys;
2.1
In the event of the respondent failing to pay the amount of Nine
Hundred and Fifty Thousand
Rand within (30) thirty days from the date
of granting of this order, the applicant is granted leave to approach
this court on
the papers filed of record, supplemented against the
respondent in the total sum prayed for;
2.3
An order directing the respondent to pay costs of this application
including costs for engagement
of counsel; and
2.4
Such further and/or alternative relief.
[3]
The applicant is the mother and natural guardian of “SM”
a minor child
of 13 years old who was a victim and injured in a motor
vehicle accident that occurred on 4 October 2011, as a consequence of
which
she sustained traumatic brain injury and a fractured left
clavicle.
[4]
According to the founding affidavit the merits in the main action
have been settled
between the parties.  On 15 September 2016 the
court ordered that all agreed or proven damages resulting from the
accident
in which the minor child was injured must be borne by the
respondent.  The applicant submits that the amount she seeks
represents
future medical treatment that is required for the minor
child as well as costs to pay the fees for a special school as
recommended
by the Educational Psychologist who compiled a report
filed in the main action.  She further stated that owing to her
precarious
financial position, the funding of her litigation has been
borne by her attorney who is no longer in a position to do so.

It is further her submission that according to the expert reports
which were prepared for the trial most significantly the report
by Dr
Mkhize, according to which he found that the child will get post
traumatic seizures which require treatment of about R15
000 00 per
annum as well as medication of +-R200 per month for headaches since
the accident.  She stated that it will be prejudicial
to the
child if interim payment is not made available.  The same goes
with the recommendation of Dr Rudenberg an Educational
Psychologist
who opined that the child needs an intensive remedical intervention
which is not available at a mainstream high School.
He
estimated the cost attended to psychotherapy treatment to be R37 882.
00 per anum.
[5]
It is further her contention that, had the respondent rejected the
RAF4 on time and
had not waited until the matter was set down for
trial, the Health Professional Council of South Africa (HPCSA) would
probably
have made the necessary decision by now.  Her hardship
is worsened by the failure and refusal of the respondent to make any

offer.  She further submits that according to the calculations
by her actuaries, the final award this court is likely to award
her
would exceed by far the R950 000.00 she is currently claiming as
interim payment.  The delay owing to the laxity of the

respondent in its handling of the matter has brought to bear an
excruciating despondency almost causing her to settle the matter
in
whatever amount the respondent was offering but for the advice she
received from her attorneys.
[6]
In its opposing affidavit of Noxolo Ntame-Memela the respondent
stated that according
to the report compiled by their neurosurgeon,
Dr Muballe, a copy of which is annexed to the answering affidavit,
the minor child
sustained a mild traumatic brain injury and her
recovery therefrom is near complete; with her class performance
slightly above
average and that she should be able to perform her
functions without limitations.  It is on the basis of this
report that
caused the respondent to reject the RAF4 assessment by Dr
Naidoo.
[7]
She further stated that in terms of section 17(4)(a) and 17(6) of the
Road Accident
Fund
[1]
the
applicant is precluded from claiming interim payment for future
medical expenses by way of application.  Instead applicant
is
entitled to make an application for an interim payment in respect of
past medical expenses, past loss of income and past loss
of support.
Respondent further contends that since the serious injury assessment
was rejected, the remaining head of damages
cannot be decided
separately.  She further contended that the applicant claims
interim payment of future medical expenses
in the sum of R950 000.00,
whilst in her summons under the head of general damages, she claims
R200 000.00.  It is the respondent’s
further contention
that what should be inferred from the statement of applicant is
testimony, that her attorneys can no longer
continue funding her
litigation, is that the true purpose of this application is to foot
the bill for the legal costs of her attorney
and not for future
medical expenses.  She further submits that if the applicant has
incurred medical expenses she is at liberty
to amend her particular
of claim to include for a claim for past medical expenses and will be
entitled to make an application for
an interim payment in respect of
those costs.  She also stated that the minor child was treated
at state hospitals after the
accident and there was no claim made
that the medical treatment she was provided was not sufficient to
meet the needs of the minor
child.  Respondent further contends
that according to Dr Mkhize the child has no neurological deficits.
Respondent is
therefore refuting the claim that the behavioural
difficulties suffered by the child who is now 13 years old are as a
result of
concussions of 7 years ago, especially if regard is had to
the neurosurgeons who have opined that the minor has nearly made a
full
recovery and suffer no neurological deficits.  Instead they
impute her behavioural problems and poor performance at school
as
being caused by her entry into the adolescence stage and being
bullied at school.
[8]
The respondent further contends that since the applicant has
described herself as
an indigent person, the respondent will in all
likelihood be unable to recover any overpayment made to her should
the decision
of the Appeal Tribunal be against her.  Instead it
is the respondent’s view that if the HPCSA delays in making its
decision
timeously, the applicant has available to her a remedy in
terms of the Promotion of Administrative Justice Act.  She
further
contends that the defendant is an organ of state that has a
constitutional duty to safeguard public funds.  In light thereof

so she contends, the applicant is not entitled to the relief sought
and the application ought to be dismissed with costs.
[9]
In reply the applicant stated that the R200 000-00 figure which was
indicated in the
particulars of claim for future medical expenses is
a nominal figure.  She further contends that Dr Muballe on whose
report
the respondent place reliance to reject the RAF 4 form is not
a competent expert to deal with the other heads of damages.
She
further stated that she is not in a position to place the child in a
special school and claim such expenses in future.
She contends
that the rejection of damages that was made at the 11
th
hour should cause this court to exercise its discretion in favour of
the applicant and order the interim payment sought.
WHAT IS THE ISSUE FOR
DETERMINATION
[10]
The issues I am called upon to decide is
(a)
Whether the plaintiff is entitled to interim payment as envisaged in
Rule 34 A of the Uniform
Rules of this Honourable Court.
(b)
Whether the applicant is in terms of Section 17(4) (a) and 17(b) of
the Road Accident Fund
Act precluded from launching a claim for an
interim payment for future medical expenses.
THE
LAW
Rule 34 A of the Uniform
Rules provides:
“
(1)
In an action for damages for personal injuries or death of a person,
the plaintiff may, at any
time after the expiry of the period for the
delivery of the notice of intention to defend, apply to the court for
an order requiring
the defendant to make an interim payment in
respect of his claim or medical costs and loss of income arising from
his physical
disability or the death of a person.
(2)
Subject to the provisions of rule 6 the affidavit in support of the
application shall contain
the amount of damages claimed and the
grounds for the application, and all documentary proof or certified
copies thereof on which
the applicant relies shall accompany the
affidavit.
(3)
Notwithstanding the grant or refusal of an application for an interim
payment, further such
applications may be brought on good cause
shown.
(4)
If at the hearing of such an application, the court is satisfied
that-
(a)
the defendant against whom the order is sought has in writing
admitted liability for the
plaintiff’s damages; or
(b)
the plaintiff has obtained judgment against the respondent for
damages to be determined,
the court may, if it thinks fit but subject
to the provisions of subrule (5), order the respondent to make an
interim payment of
such amount as it thinks just, which amount shall
not exceed a reasonable proportion of the damages which in the
opinion of the
court are likely to be recovered by the plaintiff
taking into account any contributory negligence, set off
counterclaim.
(5)
No order shall be made under subrule (4) unless it appears to the
court that the defendant
is insured in respect of the plaintiff’s
claim or that he has the means at his disposal to enable him to make
such a payment.
(6)
amount of any interim payment ordered shall be paid in full to the
plaintiff unless the
court otherwise orders.
(7)
Where an application has been made under subrule (1), the court may
prescribe the procedure
for the further conduct of the action and in
particular may order the early trial thereof.
(8)
The fact that an order has been made under subrule (4) shall not be
pleased and no disclosure
of that fact shall be made to the court at
the trial or at the hearing of questions or issues as to the quantum
of damages until
such questions or issues have been determined.
(9)
In action where an interim payment or an order for an interim payment
has been made, the
action shall not be discontinued or the claim
withdrawn without consent of the court.
(10)
If an order for an interim payment has been made or such payment has
been made, the court may, in making
a final order, or when granting
the plaintiff leave to discontinue his action or withdraw the claim
under subrule (9) or at any
stage of the proceedings on the
application of any party, make an order with respect to the interim
payment which the court may
consider just and the court may in
particular order that:
(a)
the plaintiff repay all or part of the interim payment;
(b)
the payment be varied or discharged; or
(c)
a payment be made by any other defendant in respect of any part of
the interim payment
which the defendant, who made it, is entitled to
recover by way of contribution or indemnity or in respect of any
remedy or relief
relating to the plaintiff’s claim.
(11)
The provisions of this rule shall apply
mutatis
mutandis
to any claim in reconvention.”
[11]
The provisions set out in sub-rule 4(a) and (b) are jurisdictional
requirements which are a pre-requisite
for the court to exercise its
discretion to order an interim payment.  In this matter merits
have been settled in favour of
the plaintiff.  Consequently the
court ordered that all agreed or proven damages suffered by the minor
child must be borne
by the defendant.  It therefore follows that
the plaintiff has met the jurisdictional requirement to launch this
application
for interim payment.  However this matter does not
end there. Section 17(6) of the RAF provides as follows:
“
The
fund, or an agent with the approval of the Fund, may make an interim
payment to the third party out of the amount to be awarded
in terms
of subsection (1) to the third party in respect of medical costs, in
accordance with the tariff contemplated in subsection
(4B), loss of
income and loss of support:  Provided that the Fund or agent
shall, notwithstanding anything to the contrary
in any law contained,
only be liable to make an interim payment in so far as such costs
have already been incurred and any such
losses have already been
suffered”.
[12]
Mr Malunga for the plaintiff argued that notwithstanding the
provision that the defendant will
only be liable to make interim
payment in so far as such costs have already been incurred and where
such losses have already been
suffered, it could not have been the
intention of the legislature to close the door for a plaintiff who
has suffered loss albeit
not incurred due to financial constraints,
not to be able to claim interim payment.  He relied on the
remarks which were made
by Petse JA
in
Pithey
vs
RAF
[2]
where the learned judge of Appeal reiterated what was said in
Multilateral
motor vehicle Accidents Fund vs Radebe
[3]
that the primary purpose and objectives of the Act represents social
legislation aimed at the widest possible protection and compensation

against loss and damages for the negligence driving of a motor
vehicle.
He
further invited the court to have regard of the best interest of the
child as envisaged in the Constitution
[4]
.
[13]
Mr Clark for the defendant reiterated the provisions of s17(6) that
the plaintiff is only entitled
to make an application for interim
payment in respect of past medical expenses, past loss of support and
not for losses that may
be incurred in future.
[14]
I find it necessary to sketch the common cause timelines of this
matter from its inception up
to the stage of this present
application.
[15]
RELEVANT TIME LINES
15.1
The accident as a result of which the child sustained injuries
occurred on 04 October 2011, when she was
six years old.
15.2
Summons were issued in August 2014
15.3
All medico-legal reports were served and filed with the last one
filed on 18 July 2016.
15.4    On
November 2016 parties agreed that in light of the issue of liability
having been settled and disposed
of, the only issue that is
outstanding for determination is quantum.
15.5
The matter having been set down for 18 April 2018, it was postponed
to 28 August 2018 for settlement of quantum.
15.6    On
the 28 August 2018 the matter was postponed to 22 November 2018 with
the order of court directing that
the matter is postponed for the
determination of quantum.  For reasons not apparent, on 22
November 2018 the matter was removed
from the roll at the instance of
the plaintiff.
15.7
On the 28 August 2018 when the matter was postponed to 22 November
2018 for determination of quantum, at
09:39 of the same date, the
defendant served the offices of the attorneys of plaintiff with a
notice in terms Rule 36(a)(b) in
which he advises the plaintiff of
the report of the neurosurgeon Dr Muballe who will testify at the
trial on the findings that
were contained in his medico-legal report.
[16]
Notwithstanding this development the respondent chose not to be
candid with the court, and inform
the court that it is premature or
at best an exercise in futility for the matter to be postponed for
determination of quantum whereas
knowing fully well that as a result
of that report of Dr Muballe the horses have bolted and the matter
will await the outcome of
the HPCSA.
[17]
If regard is had to the timelines above, it is indeed so that after
seven years the injured child
is yet to be compensated for her
suffering.  As already indicated that despite the availability
of all the applicant’s
expert reports to the respondent up to
the middle of 2016, it is only in 2018 that the defendant finds it
necessary to engage an
expert upon whose report the RAF 4 form is
rejected.
[18]
Upon these facts it is my view that the applicant is not crying foul
when she contends that the
respondent has purposed to delay the
finalization of this matter.  It is well and good for the
defendant to say that the plaintiff
has the right to launch a court
application under the Promotion of Administrative Justice Act 3 of
2003 (PAJA) to drag the Appeal
Tribunal to court to force it to
expedite its pending decision regarding the serious injury assessment
but chose not to do so.
What the respondent fails to appreciate
and deliberately so in my view, is the apparent lack of means of the
plaintiff to litigate
at will.  This is more so that many [a]
claimants against the fund are poor citizens who struggle to make
ends meet.
And what the defendant overlooks and regrettably so,
is that it is an organ of state that is enjoined by the constitution
to perform
its obligations diligently and without delay
[5]
.
Whilst the contention is correctly made, that the applicant has a
remedy available under PAJA as was stated in
Road
Accident Fund v Duma
[6]
.
And whilst subscribing fully to Duma.  I do not find that the
judgment of Duma was a carte blanche for respondent to
act in an
inept manner such as the one displayed in this case, where the
respondent has waited for two years after having been
placed in
possession of the expert reports to later reject the RAF 4 form at
the 11
th
hour when the matter is set down for trial.
[19]
To amplify my view above I find the remarks of Plasket J
[7]
,
very instructive when he said:
“
It
is expected of organs of State that they behave honourably that they
treat the members of the public with whom they deal with
dignity,
honestly, openly and fairly.  This is particularly so in the
case of the defendant.  It is inundated to compensate
with
public funds those who have suffered violations of their fundamental
rights to dignity, freedom and security of the person,
and bodily
integrity as a result of road accidents.  The very mission of
the defendant is to rectify those violations, to
the extent that
monetary compensation and compensation in kind is able to.  That
places the defendant in a position of great
responsibility:
Its
control of the purse strings places it in a position of immense power
in relation to the victim of road accidents many of whom
it is
well-known, are poor and lacking in protective and assertive armour”.
[20]
It is in light of the checkery history of this matter, the best
interest of the child which this
court is enjoined to uphold as upper
guardian of all minor children, that causes me to find the attitude
of the respondent not
consonant and in sync with it’s mandate
towards victims of motor vehicle accidents who as I alluded to
earlier are people
in the main who are in the poor strata of
society.  To expect from them to litigate until they are dried
out is a renunciation
of the fund’s mandate which is to
compensate those who have suffered violations of their bodily
integrity as a result of
road accidents.
[21]
Mr Clark for the defendant referred me to the matter of
NJ
v MEC (Health)
Western
Cape Provincial Government
[8]
.
In that matter Henney J was invited to give a disjuncture
interpretation to Rule 34A of the Uniform Rules to grant the
plaintiff the relief sought of interim payment without having regard
to the onerous provisions and requirements as set out in sub-rule

(4).  The net effect was to make it possible for plaintiff to
bring an application in a substantive manner in terms of sub-rule
(1)
and (2) without either having to satisfy the court that the defendant
has in writing admitted liability for the plaintiff’s
damages
or that the plaintiff has obtained judgment against a defendant for
damages to be determined.  The court in that matter,
correctly
so, rejected the contention and refused the relief sought on the
basis that there was no indication that the defendant
is liable
neither was there an admission of liability by the defendant.
[22]
The situation in this matter is in all fours similar to the matter of
Karpakis.  It is common
cause that the applicant has obtained
judgment against the respondent this is a distinguishable feature
from the matter that was
before Henney J.
[9]
Whilst
accepting that the opinion of Dr Muballe has a bearing on the general
damages, I do not find a convincing reason why the
other expert
opinions to the effect that the minor child needs immediate remedial
attention must yield to the opinion of Dr Muballe
who is not an
expect or competent to deal with the other heads of damages.  It
is inconceivable that the respondent can bravely
reject that the
child requires special schooling on the basis of Dr Muballe’s
report and eschew the overwhelming opinions
of the clinical
psychologist, educational psychologist, occupational therapist and
industrial psychologist who all are in agreement
on this aspect.
Consequently I do not see any reason why the issue of general damages
cannot be separated from the other heads
of damages.
[23]
I find what was held in
Karparkis v
Mutual & Federal Insurance Co. Ltd
very apposite, where the following was said:
“
Under
Rule 34(4)(a) and (b) the respondent’s (defendant’s)
position is a strong one because an interim payment can only
be
ordered if,
inter alia
,
the defendant has in writing admitted liability for the plaintiff’s
damages, that is to say if the defendant has conceded
the merits of
the action (which is the case in the present action) or if the
plaintiff has obtained judgment against the defendant
for damages
still to be determined, that is to say where the issues of the merits
and of the quantum of damages were separated
at the commencement of
the trial in terms of Rule 33 (4).”
[24]
Turning to section 17(6) of the RAF Act.  Mr Mnqandi for the
plaintiff referred me to the
matter of
Allpay
Consolidated v Chief Executive Officer, SASSA
[10]
where the Constitutional court stated:-
“
Assessing
the materiality of compliance with legal requirements in our
administrative law is, fortunately, an exercise unencumbered
by
excessive formality.  It was not always so.  Formal
distinctions were drawn between “mandatory” or
“peremptory”
provisions on the on hand and “directory”
ones on the other, the former needing strict compliance on pain of
non-validity,
and the latter only substantial compliance or even
non-compliance.  That strict mechanical approach has been
discarded.
Although a number of factors need to be considered
to the purpose of the provison.  In this Court O’Regan J
succinctly
put the question in ACDP v Electronical Commission as
being “whether what the applicant did constituted compliance
with the
statutory provisions viewed in the light of their purpose."
[25]
In
Natal
Joint Municipality Pension Fund v Endumeni Municipality
[11]
the rules of interpretation where articulated by Wallis JA as
follows:
“
The
present state of the law can be expressed as follows:
Interpretation is the process of attributing meaning to the words

used in a document, be it legislation, some other statutory
instrument, or contract, having regard to the context provided by
reading the particular provision or provisions in the light of the
document as a whole and the circumstances attendant upon its
coming
into existence.  Whatever the nature of the document,
consideration must be given to the language used in the light
of the
ordinary rules of grammar and syntax; the context in which the
provision appears; the apparent purpose to which it is directed
and
the material known to those responsible for its production.
Where more than one meaning is possible each possibility
must be
weighed in the light of all these factors.  The process is
objective, not subjective.  A sensible meaning is
to be
preferred to one that leads to insensible or unbusinesslike results
or undermines the apparent purpose of the document.
Judges must
be alert to, and guard against, the temptation to substitute what
they regard as reasonable, sensible or businesslike
for the words
actually used.  To do so in regard to a statute or statutory
instrument is to cross the divide between interpretation
and
legislation; in a contractual context it is to make a contract for
the parties other than the one they in fact made.
The
‘inevitable point of departure is the language of the provision
itself’, read in context and having regard to the
purpose of
the provision and the background to the preparation and production of
the document.”
[26]
Concomitant to the rules of interpretation laid down above the I have
also been requested to
heed the best interest of the child as
envisaged in section 28 of the Constitution as well as the attended
provisions of the children’s
Act
[12]
which underscore the best interest of the child.
[27]
Given the purpose and objectives of the Road Accident Fund Act, which
is to give the widest possible
protection and compensation to third
parties in respect of loss and damages for the negligent driving of a
motor vehicle, it is
my view that it would be absurd if section 17
(6) was intended to have those victims who seek interim payment but
because such
costs have not yet been incurred due to their financial
constraints must be found unsuited to bring such an application.
Each case must be amended in its own merits and the relevant
circumstances for the court to make a value judgment thereon.
[29]
In the circumstances I find that the plaintiff is entitled to interim
payment as sought in the
notice of Motion.  However, during the
argument of the matter, counsel for the applicant agreed that the
court has a discretion
to determine an appropriate amount
notwithstanding the amount of the 950 000.00 which is claimed in
the Notice of Motion.
Based on the evidence before me and the
immediate remedial needs of the minor child I have determined an
amount R500 000.00 as
a suitable amount for the interim payment.
[30]
In the result I make the following order:
30.1
The respondent is directed to pay to the applicant an amount of Five
Hundred Thousand (R500 000.00)
paid in to the bank account of
the applicant’s attorneys as an interim payment in terms of
Rule 34 A of the Uniform Rules
of Court pending the final
determination of the main action which has been instituted in this
court in case no. 446/2014.
30.2    In
the event of the respondent failing to pay the amount of Five Hundred
Thousand Rand (R500 000.00) within
thirty (30) days from the date of
granting this order, the applicant is granted leave to approach this
Honourable Court on the
papers filed of record, supplemented, if
necessary, for judgment against the defendant in the total sum prayed
for.
30.3
The defendant is directed to pay the costs of this application,
including costs of counsel.
NQUMSE
AJ
JUDGE
OF THE HIGH COURT (ACTING)
Appearances:
Counsel
for the Plaintiff:
Adv SY Malunga
Instructed
by                                  WT

MNQANDI & ASSOCIATES
Plaintiffs’
Attorneys
c/o
DANDALA ATTORNEYS
18
Eagle Street
KING
WILLIAMS TOWN
Counsel
for the Defendant:
Adv I. C Clark
Instructed
by                                SMITH

TABATA ATTORNEYS
Defendants’
Attorneys
Sutton
Square
Queens
Road
KING
WILLIAMS TOWN
Matter
heard on:                          28

March 2019
Judgment
delivered on:              09
May 2019
[1]
Act
56 of 1996
[2]
2014(4)
SA 112
[3]
1996
(2) SA 145(A)
[4]
See
section 28 Constitution of the Republic of South Africa (No. 108 of
1996)
[5]
237
Constitution of the RSA Act 108 of 1996.
[6]
RAF
v Duma, RAF v Kubeka; RAF v Meyer; RAF v Mokoena
[2013] 1 ALL SA 543
(SCA) 2013 (6) SA9 (SAC) (27 NOVEMBER 2012)
[7]
Mlatsheni
v Road Accident Fund 2009(2) SA 401 (E) at 406 Para 17 (F-G).
[8]
Case
No 15364/16 (Reportable)
[9]
1991 (3) SA489 (o) at 497 D-F
[10]
2014
(1) SA 604
(CC) (29 November 2013)
[11]
2012
(4) SA 593
(SCA) para 18.
[12]